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In Counsell v. Nystrom & Associates, Ltd, No. 05-2315 (PSJ/JJG), 2007 U.S. Dist. LEXIS 10759 (D.Minn. Feb. 13, 2007), the court awarded summary judgment to the employer dismissing the employee's FMLA interference claim based on after-acquired evidence establishing that, at the time she requested FMLA leave the employee was not otherwise able to perform the essential functions of her job (apart from the inability to work a full-time schedule) and, therefore, was not entitled to FMLA leave on an intermittent or reduced leave schedule.

Denise Counsell worked as psychiatric physician assistant for Nystrom, a provider of psychological and psychiatric counseling services. In her position, Nystrom must be licensed by the state medical board. Counsell suffered from several medical conditions for which she received extensive treatments. She was also frequently hospitalized. Her frequent, unexpected absences required patient appointments to be rescheduled, which was disruptive to the patients and her employer.

After a ten-day hospitalization in January 2004, Nystrom advised Counsell that she was eligible for FMLA leave. Nystrom asked Counsell to provide medical certification, which she did. Nystrom then approved her for 60 consecutive days of FMLA leave, which Counsell refused saying that she needed to take FMLA leave intermittently. Nystrom also required Counsell to provide 24 hours notice before taking leave, which Counsel also refused to agree to because sometimes she did not know 24 hours in advance whether she would need leave. Nystrom withdrew the offer of 60 days of FMLA leave and provided some substitute guidelines Counsell was required to follow to request leave. After several more months of calling in sick, absences, and missed appointments, Nystrom terminated Counsell's employment for her failure to follow the requirements for providing advanced notice of her absences. After it terminated her, Nystrom contacted the Minnesota Board of Medical Practice to report Counsel's unprofessional conduct in causing hundreds of patient appointments to be rescheduled. Counsell sued alleging that her termination and denial of intermittent FMLA leave interfered with her FMLA rights.

Subsequently, Counsell submitted to a comprehensive mental, physical and chemical dependence evaluation in connection with the Medical Board's investigation of Nystrom's complaint. The evaluators diagnosed Counsell with Munchhausen's syndrome (an affliction wherein individuals deliberately cause themselves to be ill or lie about being ill in order to get care and attention), borderline personality disorder, and opioid and sedative dependence. Two years after Nystrom fired her, the Medical Board suspended Counsell's license to practice as a physician's assistant indefinitely, concluding that she was unfit to practice as a physician's assistance.

Nystrom was unaware of the extent of Counsell's afflictions until it received over 4000 pages of her medical records during the discovery phase of the FMLA lawsuit. In addition to the conclusions of the Medical Board, Nystrom's learned that other health care professionals had reported Counsell to the Board as well. Nystrom's obtained copies of the reports, several of which came from Counsell's own medical providers, expressing concern that she was unfit to hold a physician assistant license. Some of Counsell's treating physicians suggested that she was addicted to opiate drugs, engaged in drug-seeking behavior, and suffered from Munchhausen's syndrome. Her treating physicians suspected that many of Counsell's medical problems were feigned, self-induced, or purposefully exacerbated.

Nystrom hired a medical expert who reviewed Counsell's medical records and concluded that she was unfit to be practicing as a physician's assistant while she was employed by Nystrom. The expert concluded that Counsell suffered from Munchhausen syndrome, borderline personality disorder, and drug dependence during 2004, when she was working for Nystrom. The expert also concluded that Counsell had engaged in a pattern of deceptive behavior at Nystrom's that concealed her psychological problems from her coworkers.

Nystrom moved for dismissal of Counsell's FMLA claim arguing that she was not entitled to FMLA leave, intermittent or otherwise, because she was not otherwise able to perform the essential functions of her job except for the need to take FMLA leave. The Court agreed.

Nystrom, the court found, established through expert testimony based on Counsell's medial record that Counsell suffers from Munchhausen's syndrome, borderline personality disorder, and opioid dependence during the time she was employed by Nystrom. Expert testimony established that Counsell posed an unacceptable risk of harm to her patients and that, as a result of her drug additions, Counsell was not qualified to practice as a registered physician under state law. The fact that she was successful in hiding her mental illness from the psychiatrist with whom she worked, the Court concluded, did not make her any less unfit. The Court found that Counsell did not submit evidence, expert or otherwise, that she did not suffer the mental illnesses identified by Nystrom.

The Court rejected Counsell's argument that Nystrom should not be precluded from matining her FMLA interference claim based on after-acquired evidence. The Court distinguished the decision of the Supreme Court in McKennon v. Nashville Banner Publishing Co, 513 U.S. 352 (1995). In that case, the Supreme Court held that after-acquired evidence of an independent reason to terminate the employee did did not bar a plaintiff from pursuing their age claim where the employer admitted that the original termination violated the Age Discrimination in Employment Act. Nystom, the Court noted, did not admit to discriminating against Counsell.

Moreover, the Court noted that an interference claim, unlike a discrimination claim, does not require bad intent. Rather, the only relevant question in an FMLA interference case is whether Nystrom, for good reason, bad reason, or no reason, failed to give Counsell the leave to which she was entitled. To determine whether Counsell was entitled to intermittent leave under the FMLA, the Court must first determine whether Counsell was capable of performing the essential functions of her job. "There is no reason, in law or logic, why the Court should not be able to consider "after-acquired" evidence on the question of whether Counsell was able to perform the essential functions of her job.

The Court observed:

When considering an interference claim, a court must bear in mind that the FMLA does not provide leave for leave's sake. If the employee is unqualified for the position and thus not entitled to FMLA leave, there is no important congressional policy to vindicate in an interference case. (ciations omitted)

The Court concluded that "Nystrom's after-acquired evidence of Counsell's full medical records, and the opinions of Nystrom's expert draws on the basis of those record, properly bar Counsell's FMLA claim.

Comment: The decision opens the door for employer's to use evidence acquired well after the denial of leave to establish that an employee who asked for and was initially approved FMLA leave was nevertheless not entilted to that leave because they were not able to perform the essential functions of their job (other than regular attendance while on FMLA leave). The consideration of after-acquired evidence in Counsell undoubtedly saved the day for the employer who otherwise appears to have violated the FMLA.